Ready Willing and Able clause

user1977

How is the hypothetical "contract" interpreted? The parties still have to come to a consensus about a completion date, if nothing else - what if a buyer is ready willing and able to complete in a week's time, whereas the seller claims to be ready willing and able to exchange contracts but only with a longer completion date?

RHemmings

Two things we don't yet know - according to my revision of the thread. (Unless I missed something). 

We don't know if the EA in question is registered with The Property Ombudsman Service or The Property Redress Scheme. They have different codes and seem to make decisions (as far as I have noticed) differently. 

We don't know in how much detail the clause was explained to the OP's parents. E.g. see: https://propertyindustryeye.com/ombudsman-expresses-surprise-that-ready-willing-able-is-part-of-any-agents-contract/  

The TPO Code requires that particular care must be taken in defining and distinguishing between ‘sole agency’, ‘sole selling rights’ and ‘ready, willing and able’ clauses in sales contracts.

The definitions set out in the EARs (schedule 5(c)) must be used in full and the implications of each term clearly explained and actively flagged to consumers.

Furthermore, the CPRs require that this material information is provided to consumers in a clear and unambiguous way before they make a transactional decision.

In practice, this means that any fee and the circumstances where it will become due, must be explained to the consumer before they have signed the contract.

Where there is more than one set of circumstances that allow for a commission fee to be claimed, all of the circumstances should be explained to the consumer and presented together in simple clear language in the contract.

It is not acceptable, for example, to present a contract which appears to be a ‘sole agency’ agreement, but includes a ‘sole selling rights’ or ‘ready, willing and able’ term elsewhere in the document.

If the clause was not explained sufficiently clearly, then it may be the case that the OP's parents cannot be held to it. May be. 

And, it would be interesting to know if the contract 'appears to be a 'sole selling agency' agreement', but includes the R,W,&A clause. 

The above is from an article in 2017. The case found by @eddddy is from 2012, and was also reported in an article by TPOS in 2014. These are all old dates. 

BarelySentientAI

eddddy said:

BarelySentientAI said:

Not worrying at all.  The correct interpretation of that clause.

If the buyer is ready, willing and able, and demonstrates this to the extent of saying "I am ready to exchange immediately" (or something sufficiently similar - no more enquiries, mortgage offer received etc), then if the seller says "no, not yet" and the buyer pulls out, then the seller would be liable for those fees.  The EA has done their job according to the contract in that case.

There's an argument that says the fees would only become due if the property was no longer for sale with that EA, and I've got nothing against that interpretation.

It's a naff clause though and should be got rid of

I don't think you've considered the phrase "in accordance with your instructions".

A I say, a seller's typical instructions would be...

• I intend to sell my  property and buy another property simultaneously

• So please introduced a buyer who is willing to buy my property on that basis

(i.e. introduce a buyer who will be ready, willing and able to exchange contracts when I am ready to exchange contracts on my purchase.)


The press release is just a summary of the Ombudsman's decision. So I wonder if there are key factors which aren't mentioned - like 'unusual' instructions from the seller, or extra clauses in the contract.

I have considered it, but I think it's a bit of a nonsense term to add there and doesn't change the situation one bit.

The instructions, in this sense, are "to act on my behalf when selling the property" - not specific instructions like you suggest.  It's a common contract term in the legal and insurance professions.

BarelySentientAI

user1977 said:

How is the hypothetical "contract" interpreted? The parties still have to come to a consensus about a completion date, if nothing else - what if a buyer is ready willing and able to complete in a week's time, whereas the seller claims to be ready willing and able to exchange contracts but only with a longer completion date?

One of the many reasons why these clauses should stop being used.

Olinda99

thanks for all the replies yes it is a sole agency contract and this is the rwa clause

Olinda99

I agree about what ready willing and Able to exchange contracts in particularly for example in the realm of completion date. One party could say I'm RWA and I want to complete as soon as possible and the other part you could say well I haven't found a place but I'm willing to exchange with a completion date of nine months time.

nothing was explained to my parents when they signed the agreement other than the commission ate -  in fact they didn't even know there was writing on the other side of the form they signed at home.

Olinda99

my interpretation and the effects of this clause for what it is worth follows

1. if you have this clause in your contract then you should not put your house on for a fixed price because if that price is offered then you have to sell. You should always have 'guide price' or 'offers an excess of' or whatever. That gives you flexibility to refuse an offer

2. the RWA clause cannot come into effect until you have accepted an offer.

3. once you have accepted an offer you're pretty much bound by RWA despite whatever happens in change of your circumstances - for example your seller pulls out or you get a bad survey on your purchase or whatever 

4. there may be a possible bit of wiggle room in demanding a completion date a long way in the future causing your buyers to pull out but I'm not sure how far you would get with that realistically.

RHemmings

Can you please tell us if the EA is a member of The Property Ombudsman Scheme, or The Property Redress Scheme? It will say on their website. If you can't find it, then if you PM me the name of the EA I will look it up and not say who the EA is in public. 

Olinda99

they are a large agent a household name and are members of the property ombudsman scheme and guild of property professionals.

RHemmings

Olinda99 said:

they are a large agent a household name and are members of the property ombudsman scheme and guild of property professionals.

Thanks. This means that your parents can use TPOS's dispute resolution service if it comes to that. 

Looking at the code of conduct for Residential EAs on TPOS's site, all fees and costs must be explained clearly in writing including the specific situations whereby those fees and costs may become due. 

My personal opinion, for what it is worth as I am no expert, is that the excerpt from the contract included in your post above is not sufficiently clear as to the specific situations that those fees become due. As in term 5j of TPOS's code of practice. I see it as unclear because it doesn't answer questions, such as how far along the process does it have to be before the seller withdrawing incurs the R, W, and A clause and a fee has to be paid. 

OP, if I was in your position, I would get your parents to write to the EA, stating that they find that clause entirely unclear, and they wish to have it described to them in more detail in exactly what circumstances they may have to pay that fee. I'm not suggesting that you do that immediately, but wait to hear what others say. 

However, if you did something similar to what I suggest, then at least then you'd know what the EA feels that the boundaries are. In particular if the EA feels that a buyer making an offer is enough to make them R, W, & A. (Which some EAs do, it appears, claim. I am not saying that they are justified in making such a claim.)

It would give your parents an opportunity to discuss the situation and their concerns with the Estate Agent. And, the EA may be able to allay those fears. Or, they may not. 

In which case it comes back to - are your parents prepared to take the risk of having to pay this fee. Or, are they willing to wait out the exclusivity period.